Con Law Flashcards
Standards of Review - Strict Scrutiny
Necessary to achieve a compelling government purpose (burden on the government)
Standards of Review - Intermediate Scrutiny
Substantially related to an important government purpose (burden on the government)
Standards of Review - Rational Basis
Rationally related to some legitimate government purpose
Standing definition
Article III requires that a plaintiff have standing to sue before a constitutional challenge can be made
Standing Requirements
A plaintiff has standing if:
(1) she has suffered an injury
**Injury - the plaintiff must allege or prove that she was injured or imminently will be injured
(2) That is redressable by a favorable court decision, and
**Redressability - To be redressable, a court decision in plaintiff’s favor must be capable of eliminating the harm.
(3) Was caused by the act being challenged
**Causation: there must be a causal connection between the injury and the state action
Organizational Standing
An organization has standing when:
(1) there is an injury to a member which gives them a right to sue on their own behalf (ie member must have actually violated the statute)
(2) The injury is related to the organization’s purpose, and
(3) Participation of individual members of the organization is not required
Third Party Standing
A claimant may have standing to assert the rights of a third party if:
(1) it is difficult for the third party to assert his or her own rights, or
(2) A special relationship exists between the claimant and the third party
Taxpayer standing or citizen standing
A person does not have standing merely as a taxpayer or citizen of the US because their interest is too remote.
Exceptions - Taxpayers have standing if:
(1) the constitutional challenge relates to a tax bill they paid under protest, OR
(2) The constitutional challenge is based on the Establishment Clause of the First Amendment where the government exercised its spending power
Standing to enforce governmental statutes
A Plaintiff may have standing to enforce a governmental statute if she is within the zone of interests the statute’s purpose is to protect.
State Action
The Constitution does not provide a means of redress for private wrongs. State Action must be present in order for an individual to vindicate her constitutional rights. State action can be found in actions of private individuals who:
(1) Perform exclusive functions OR
(2) Have significant state involvement
Justiciability
Federal courts may address cases and controversies so long as there is standing, state action, and other limitations are not present.
Justiciability - (1) Ripeness
A case is not yet ripe if there is no immediate threat of harm
P is entitled to pre-enforcement review of a statute or regulation if:
(i) P will suffer some harm or immediate threat of harm, and
(ii) There are sufficient issues/records for judicial review which is determined by looking at whether a case was even filed
Justiciability - Advisory Opinions
A federal court may not render an advisory opinion. The parties must show:
(1) they have engaged in or wish to engage in specific conduct, and
(2) that the challenged action poses a real and immediate danger to their interests
Justiciability - Abstention
A federal court will abstain from hearing a constitutional claim if based on an unsettled question of state law.
Justiciability - Mootness
A case is moot if there is no longer any immediate threat of harm, unless the controversy:
(1) is capable of repetition yet evades review
(2) involves a class action in which at least one member still has a viable claim, or
(3) involves a defendant who voluntarily ceases harm but is free to resume at any time
Justiciability - Political Question
Political questions are not justiciable if they are either:
(1) textually demonstrably constitutionally committed to another branch of government, OR
(2) Inherently incapable of judicial resolution
Tenth Amendment
All powers not granted to the federal government, nor prohibited by the states, are reserved to the states or the people.
Eleventh Amendment
The 11th amendment provides sovereign immunity to the states so a federal court may not hear a private party’s claims against a state government, unless:
(1) state expressly consents and waives immunity
(2) action is against a state officer but does not involve payment of damages out of state funds, or
**Federal courts may not hear claims for damages against a state but they may hear a claim where the remedy being sought is an injunction
(3) Congress removes immunity to prevent discrimination under the 14th amendment.
I. Legislative Powers
Congressional Authority
Congress can exercise those powers enumerated in Article 1, Section 8 of the Constitution, and all auxiliary powers necessary and proper to carry out all power vested in the federal government including:
(1) Spending Power,
(2) Taxing Power,
(3) War Power,
(4) Property Power,
(5) Investigatory Power,
(6) Citizenship Power,
(7) Bankruptcy Power,
(8) Postal Power,
(9) Admiralty Power,
(10) Power to coin/money
(11) Patent and Copyright Power
(12) Commerce Clause
(13) Congressional Enforcement of Civil Rights
Spending Power
Congress may spend for any public purpose for the common defense and general welfare of the public
Taxing Power
Congress may tax so long as it bears some reasonable relationship to raising revenue and Congress can regulate the activity taxes
War Power
Congress has the exclusive power to declare war and appropriate money to raise the military
Property power
Congress has the power over properties of the US (including Washington DC), which includes the right to tax real property. Congress can also take property for public use called eminent domain. Congress can protect federal lands, which includes the right to protect wildlife on that land.
Investigatory power
congress can investigate anything it has power to legislate over
Citizenship power
congress can establish uniform rules of naturalization
Bankruptcy power
congress has the power to establish uniform rules for bankruptcy
Postal power
Congress has the power to validly classify and place reasonable restrictions on the use of the mail system
Admiralty power
Congress’ admiralty power is plenary and exclusive
Power to coin/money
Congress has the power to coin money and fix the standards for weights and measures
Patent and copyright power
Congress has the power to control the issuance of patents and copyrights
Commerce clause power
congress has the exclusive power to regulate all foreign and interstate commerce, including channels, instrumentalities, and activities that affect interstate commerce. If congress attempts to regulate intrastate actvitity, the law will only be upheld if:
(1) it is an economic or commercial activity that, in the aggregate,
(2) Substantially affects interstate commerce
Congressional enforcement of civil rights
Congress has special powers to pass “appropriate legislation” to enforce post-civil war amendments
Limits on Congress’ authority to act
(1) no federal police power, (2) 10th amendment (commandeering the states), (3) Delegation power, (4) speech and debate clause, (5) legislative vetoes of executive actions
Limits - (1) No federal Police Power
Congress does not have a general police power except in military bases, indian reservations, federal lands, and the District of Columbia
(MILD)
Limits - (3) Delegation Power
Congress may delegate authority to the executive or judicial branch so long as it provides intelligible standards.
Limits - (4) Speech and Debate clause
speech and conduct occurring in the regular course of the legislative process are immune from prosecution
Limits - (5) Legislative vetoes of executive actions
A legislative veto is an attempt by congress to overturn an executive agency action without passage by both houses of congress or without giving the bill to the President for his signature or veto is invalid
Limits - (2) 10th Amendment (Commandeering the states)
Congress cannot commandeer the states by compelling state regulatory or legislative action. Even if there is a federal statute on point, states are not required to pass identical legislation to that federal law to be constitutional.
Executive domestic powers
Appointment power, removal power, pardon power, veto power, executive order power, take care clause
Appointment power
President has power to appoint all ambassadors, USSC justices and consuls with Senate approval. Congress may vest appointments of inferior offices with the President. Congress may not give itself or its officers the appointment power.
Removal power
Unless removal is limited by statute, the President may remove any executive branch officer without cause. Congress may not prohibit it but may limit removal IF:
(1) independence from the president is desirable for that particular office, and
(2) removal is based on good cause
Pardon power
The President has the right to grant pardons for those convicted of federal crimes or state offense but not for impeachment or civil contempt
Veto Power
The president can veto acts of Congress but the veto can be overridden by a 2/3 vote of each house. If president does not veto OR sign the bill within 10 days of receiving it, it becomes law.
Veto power - pocket veto
a veto that becomes effective when the President fails to sign a bill after Congress has adjourned during the 10 day period (this is an absolute veto and cannot be overridden)
Veto power - line item veto
President cannot veto parts of a law and approve other parts of the law
Executive order power
President may make proclamations and executive orders that all courts of the US must recognize. The President’s power to enact executive orders depends on whether Congress granted authority, is silent, or has denied authority.
Exec order power - Express or impliedly granted authority
If congress expressly or impliedly granted authority, the presidential powers are at a maximum and her actions are likely valid
Exec order power - Silent
If congress is silent the president’s actions will be valid unless it usurps power from another branch
Exec order power - denied authoirty
if congress denied authoirty, president’s actions are likely invalid
take care clause
the president “shall take care that the laws be faithfully executed.” The president has no power to refuse to spend appropriated funds when Congress expressly mandates they be spent.
Foreign powers
The President is the Commander in Chief and has the paramount power to represent the US in day-to-day foreign relations.
(1) Treaty power
(2) executive agreements
(3) war power
Treaty power
The president has the power to enter into treaties with other countries. The treaty becomes effective when it is ratified by 2/3 consent of the Senate.
Treaty - conflict of laws:
*if a treaty conflicts with state law, the state law is invalid
*if a treaty conflicts with federal law, the last enacted controls.
*if a treaty conflicts with the Constitution, the treaty is invalid.
Foreign power - Executive agreements
The president may make agreements with foreign heads of state without Senate consent
Executive agreement - conflict of laws
*if EA conflicts with state law, state law is invalid
*IF EA conflicts with federal law, the EA is invalid
War Power
President cannot declare war but can deploy armies
Executive Privilege
The President has the right to keep presidential communications privileged or secret (this includes documents and conversations), EXCEPT for criminal prosecutions when a need for such information is demonstrated
Executive Immunity
The president has absolute immunity from civil suits with regard to any acts performed as part of official presidential responsibilities, EXCEPT for wrongs/actions committed before taking office (Jones v. Clinton)
*Designated functions: Immunity is intended only to enable President to perform his “designated functions” without fear of personal liability
Impeachment
The president, Vice President, and civil officers are subject to impeachment for bribery, treason, and high crimes
*Majority Vote in House is necessary for impeachment
*Majority Vote in Senate is necessary to convict and remove
Federalism - Preemption and Supremacy Clause
When state and federal governments pass legislation on the same subject matter, the Constitution provides that the federal law is the supreme law of the land, and any conflicting state law will be deemed invalid, by express preemption or implied preemption.
Federalism - Express Preemption
Occurs if a federal statute expressly says that the federal law is exclusive.
Federalism - Implied Preemption
occurs either:
(1) if federal and state laws are mutually exclusive
(2) state law impedes the achievement of a federal objective, or
(3) congress evidences a clear intent to occupy the field, which can be shown by any of the following factors:
(a) comprehensive federal scheme
(b) Creation of an agency to administer the laws
(c) Historically federally-regulated subject matter, or
(d) there is a need for uniform national regulation
Federalism - Full Faith and Credit Clause
Applicable to state governments only
Full faith and credit must be given and recognized by sister states if:
(1) the court had jdx over the subject matter and the parties
(2) the judgment was on the merits, and
(3) the judgment was final
